What am I saying? Section 702 of the FISA-AA directly endangers US Person privacy even more. Any number of individuals can intentionally get targeted as a result of a single FISA-AA authorization and need not have specific identifiers. Therefore, more Americans are likely to be monitored since an undefined and evolving list of individuals can show up as agents of approved targets, and those individuals may talk with yet other Americans.
In addition, no wrongdoing is required on the part of the target for surveillance to begin, and the target does not even have to qualify as an agent of a foreign power as it does under the traditional pre-9/11 FISA! With this approach, NSA can monitor any communications mechanism or facility, even if there is no connection to the target. This vastly expands the opportunities for so-called 'about' collection of communications between wholly innocent and suspicion-free people.
Furthermore, the government is not required to notify individuals incidentally or mistakenly monitored. And to date, it is also quite difficult to learn about any violations of the FISA-AA or even impose penalties for violating the FISA-AA. Minimization obligations under the FISA-AA are far weaker than even those under traditional FISA because the FISA court has less authority to authorize, implement and oversee compliance with the rules.
And under Section 702, there is no judicial review of the government's justification for the surveillance or even the identification of targets. In other words, Section 702 is a clear and compelling backdoor 'seize and search' loophole for electronic communications.
And at its core, Section 702 also permits licensing the NSA to collect the content of electronic communications without any individualized court order if the "target" of the communications is "reasonably believed" to be a foreigner overseas, and if a significant purpose of the surveillance is to acquire foreign intelligence information, although "reverse targeting" (the targeting of a U.S. person under the guise or pretext of targeting a foreigner) is expressly prohibited. However, Administration officials (and those in Congress) can get away with the facile assertion that they are technically correct in their repeated pronouncements that section 702 targets only foreigners and not Americans.
This characterization of foreign is one of the major reasons Americans have paid less attention to this surveillance program. It also explains the absence of any sustained pushback or outcry when officials describe Section 702 authorities as "clearly legal" because it is well settled in the US that non-citizens overseas are not entitled to the same level of protections afforded by the Fourth Amendment (leaving aside the privacy rights of citizens under other law and convention) afforded US citizens and US Persons (that include resident legal foreigners).
But there is much more to Section 702 than meets the eye. Notwithstanding the requirement of "targeting" foreigners, the program certainly enables a massive amount of collection of Americans' telephone calls, e-mails, Internet usage and other electronic communications. And even though the target must be a non-citizen (foreigner) under Section 702, programmatic surveillance under Section 702 sweeps up all international communications to, from, or about the foreign target. This includes communications coming into or out of the United States. Granted, the NSA may capture these calls and e-mails only if it intends to acquire foreign intelligence information, but the FISA-AA defines this term so broadly as any information relevant to the foreign interests of the United States. In other words, this wide-open barn door loophole permits the capture of almost all communications between Americans and their friends, colleagues, relatives, or even business associates overseas.
Interestingly enough, the NSA refers to this as 'incidental' collection, but there is nothing 'incidental' about it! As officials made clear during the debates leading up to the enactment of Section 702 of the FISA-AA, communications involving Americans were the most important!
But that is not all. Americans' communications are also collected by accident (called 'inadvertent' collection by NSA), to distinguish it from the 'incidental' collection that happens by design. In this guise, under Section 702, there is no need for the government to specify (let alone actually know) the identity of the person whose communications are intercepted. The government is supposed to employ FISA court-approved targeting procedures, which are then supposed to ensure that the target is "reasonably believed" to be a foreigner overseas.
But is that actually the case?
As a result of Edward Snowden's disclosures in the press, these procedures actually allow the NSA to "presume" that the target is a foreigner overseas as long as it has no specific information to the contrary! Other press reporting in the past also indicates that the NSA, in sifting through Internet traffic, employs search terms that are designed to achieve a "51% confidence" level in the target's 'foreignness'--just slightly better odds than a coin toss!
Between 'inadvertent' and 'incidental' collection, it is likely that Americans' communications make up a rather significant portion of the hundreds of billions of Internet transactions (and an undisclosed number of telephone and other electronic conversations) intercepted each year without a warrant or a formal showing of probable cause.
At first blush, this may seem to fly in the face of the Fourth Amendment. The current law, however, provides an apparent and convenient safeguard for compliancy to the procedures. Under Section 702, the NSA must adopt "minimization procedures" that are "reasonably designed . . . to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons."
But what does this actually mean?
Information about Americans may be kept and shared only under very narrow circumstances that includes information as evidence of a crime or that is necessary to understand foreign intelligence information. The full statutory logic is therefore defined as a programmatic effort to collect intelligence about foreign nationals, while the warrantless acquisition of information about US persons is then inevitable, but kept to a minimum. Moreover, when such warrantless acquisition does occur, the information that relates to US persons is ostensibly kept separate, destroyed or masked unless it falls under certain delineated exceptions.
But again, here is where the backdoor search loophole shows up! In 2011, the NSA persuaded the FISA court to approve a new set of minimization procedures under which the government may use US Person identifiers (to include telephone numbers, e-mail accounts et al associated with Americans) as justification to search the Section 702 database for the communications of or about those individuals. But remember again that the previous minimization requirements had expressly prohibited this practice!
(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).
